Bifurcation and Ch. 72: Should it Even Apply to Regular Ol’ Car Cases?
(4) “Commercial motor vehicle” means a motor vehicle being used for commercial purposes in interstate or intrastate commerce to transport property or passengers, deliver or transport goods, or provide services. The term does not include a motor vehicle being used at the time of the collision for personal, family, or household purposes.
Tex. Civ. Prac. & Rem Code § 72.051
It is the responsibility of the Court to construe statutes not the legislatures. In re Canales, 52 S.W.3d 698, 702 (Tex.2001). “If a statute is clear and unambiguous, we need not resort to rules of [statutory] construction or other aids to construe it.” Id. “Even then, however, we may consider, among other things, the statute’s objectives, its legislative history, and the consequences of a particular construction.” Id. If the plain language of a statute does not convey the legislature’s apparent intent, the court may resort to additional construction aids, such as the objective of the law, the legislative history, the common law or former statutory provisions, including laws on the same or similar subject, and the consequences of a particular construction. Seguin v. Bexar Appraisal Dist., 373 S.W.3d 699 (Tex. App. San Antonio 2012).
Here, the legislative intent was to apply this to commercial vehicles and trucking (18-wheelers), not delivery drivers in regular vehicles. That was the intent and history behind the bill.
The commercial trucking industry is essential to the state’s economy, representing one in every 15 Texans employed and transporting two million tons of goods daily. Approximately 88 percent of all commercial trucking companies in Texas are considered small mom and pop businesses. These companies, although heavily regulated by the state and federal government, are experiencing a sharp increase in the number of collision lawsuits filed against them. As a result, commercial vehicle insurance rates are skyrocketing, increasing from 10 percent to 30 percent in 2018 and 2019, respectively. Rising insurance costs combined with exorbitant settlements disrupt the state’s ability to successfully meet the supply-demand needs of all Texas.
H.B. 19, engrossed version, seeks to strengthen the Civil Practice and Remedies Code by ensuring legitimate evidence directly relevant to causation and injuries arising from a commercial vehicle accident is presented to jurors without prejudice. Furthermore, H.B. 19 sets forth specific procedures by which the facts of a case are presented in court by both the plaintiff and defendant to determine negligence of a defendant and award fair compensation.
– 2021 TX H.B. 19: Author’s Statement of Intent
Applying Ch. 72 to this type a case where no 18-wheeler was present goes against the intent of who the statute was meant to apply to. Even taking a look at the statute as a whole, Ch. 72 only has applicability in trucking cases. The exceptions under Ch. 72.054 only apply to 18-wheelers as it only goes through the Federal Motor Carrier Safety Administration regulations. This entire statute was meant to protect the trucking industry, not delivery drivers. That is why the definition includes “intrastate and intrastate commerce.”
B. Ch. 72 Does Not “Bifurcate Away” Plaintiff’s Claims Negligence Against the Corporate Defendants
Chapter 72 provides for a limited bifurcation of certain claims against defendants who employ commercial motor vehicle drivers. The statute defines “defendants” to include those who “operated a commercial motor vehicle involved in the accident” or who “owned, leased, or otherwise held or exercised legal control over a commercial motor vehicle or operator of a commercial motor vehicle involved in the accident.” The statute adopts definitions for compensatory damages and exemplary damages from §41.001, that compensatory damages are “economic and noneconomic damages” and “does not include exemplary damages,” and that exemplary damages are “any damages awarded as a penalty or by way of punishment but not for compensatory purposes,” which ”includes punitive damages” and “are neither economic nor noneconomic damages.
The definitions for “commercial motor vehicle” and “employee” are as follows:
(6) “Employee” means a person who works for another person for compensation. The term includes a person deemed an employee under state or federal law and any other agent or person for whom an employer may be liable under respondeat superior.
Evidence that an employer defendant violated a “statute, regulation, rule, or order regulating equipment or conduct adopted or promulgated by the federal government, a state government, a local government, or a governmental agency or authority” is still admissible in the first phase of a bifurcated trial. Tex. Civ. Prac. & Rem. Code § 72.053. Likewise, to the extent that evidence is probative not only of compensatory damages and liability but exemplary damages and liability, “[n]othing in this section prevents a claimant… from presenting evidence on that claim in the second phase of a bifurcated trial” after presenting it in the first phase”. Id at (c). As written, the statute contemplates that plaintiffs/claimants will present evidence of employer defendants’ negligence in the first phase. The first phase may include presentation of evidence ”that tends to prove that failure to comply with the regulation or standard was a proximate cause of the bodily injury or death for which damages are sought in the action” when the “regulation or standard is specific and governs, or is an element of a duty of care applicable to, the defendant, the defendant’s employee, or the defendant’s property or equipment when any of those is at issue in the action. Id.
The scope and applicability of Ch.72 is precise and limited. A defendant who seeks an order as imprecise and unlimited as a blanket order to ”bifurcate the case” is inviting delay, confusion, and the likely creation of reversible error.
C. Ch. 72 Does Not Provide the Relief that Defendants Seek
When a defendant instead seeks a variety of bifurcation or relief which is not what Ch. 72 provides, the defendants have forced onto the court a task which is neither simple nor required. It does not provide that all claims against an employer defendant should be pushed to the second phase of a bifurcated trial. Chapter 72 does not even provide that all evidence which might pertain to respondeat superior must be pushed to the second phase. A Defendants request to bifurcate “on the issue of liability for and the amount of exemplary damages” is beyond what Ch. 72 affords. The Defendants motion and order fail to identify anything meaningful about how the evidence, claims, or defenses will be presented at trial, or how they will be affected by this order.
A motion to bifurcate under Ch. 72 should identify what evidence and claims are bifurcated, how the defendants plan on these items to be bifurcated and why the statute provides for such bifurcation. None of that is present here. Defendants’ motion leaves the Plaintiff, and this Court, guessing on how to proceed. Absent a motion which actually seeks the relief available under Ch. 72, this Court is not compelled to fill in the blanks left by the defense and should not grant a Ch. 72 motion which has not in fact or effect been made. Interpreting §72.052(a) to require courts to do defendants’ basic legal legwork is an absurd result which has no basis in the plain language of the statute.
D. Bifurcation does Not Avoid Prejudice, Promote Justice, or Further the Convenience for the Parties or for the Court
Even outside the context of Ch. 72, there is no reason for the Court to bifurcate the trial of this case under permissive procedural vehicles available to the Court. Defendants state no facts and make no argument to show that bifurcation would accomplish any of those purposes here of avoiding prejudice, promoting justice, or furthering convenience. It is not this Court’s burden to reimagine the requests of litigants before it into cogent motions for grantable relief, nor is it this Court’s responsibility to grant orders which are wanting for legal and factual authority.
CONCLUSION
Ch. 72 and its bifurcation is complicated. So complicated that as of the release of this paper, there is no case law deciphering it or expanding on its principles. Judges are just as confused as lawyers on how this statute applies, or even if it would apply in certain circumstances. Our firm has done research into the actual purpose of the statute, showing that it should not apply to your run-of-the-mill car wreck cases. Judges need to be informed on the precise reading of the statute. If there are any questions or concerns about these arguments, please contact our office to get our papers and materials on these statutes.